On January 4, 2022, the New York Court of Appeals heard oral argument in the case of Hunters For Deer, Inc. v Town of Smithtown, where conflicting provisions of a Town of Smithtown firearm ordinance and the Environmental Conservation Law (ECL) both vie for authority.

This appeal presents questions of preemption and statutory interpretation: whether the State Legislature, in amending the ECL to reduce the setbacks for the use of “bows and arrows” intended to preempt local municipal regulations of “firearms.”  Specifically, the question is whether the State statute ECL §§ 11-0701(2)(a) and 11-0931(4)(a)(2) preempt Chapter 160 of the Town Code of Smithtown.

Hunters For Deer, Inc. (HFD) brought this action against the Town of Smithtown in 2017, to declare invalid Town Code Chapter 160, which defines “firearm” to include “sling shots” and “a bow and arrow” and prohibits its discharge within a 500-foot setback of an occupied structure.  HFD contends that Chapter 160 is inconsistent with, and therefore is preempted by, the ECL which defines and regulates the use of a bow and arrow and recently reduced the setback to 150 feet from an occupied structure.  In 2020, after losing at the trial court level, the Second Department reversed the lower court’s decision, stating that the Town’s more restrictive setback regulations were preempted by the State’s firearm law and the ECL.

The Town was granted leave to appeal and contends that Chapter 160 is not preempted by the ECL, because certain towns in New York are specifically empowered to regulate firearms pursuant to Town Law  §130(27), when such activity may be hazardous to the general public.  The Town claims because Town Law §130(27) allows for ordinances, rules and regulations that “may be more, but not less, restrictive” than any other provisions of State law, it can increase the setback for the discharge of a bow and arrow to 500 feet, which was the prior distance set by the State before the 2014 amendment to the ECL.

Notably, the New York State Department of Environmental Conservation (DEC) has backed HFD’s position. The agency argued in its amicus brief that the State reduced its setback rule for long bows to “promote effective deer management in suburban areas” as part of a field that is comprehensively regulated by the DEC.

The questions presented before the Court were: (1) whether a long bow is not a “firearm” within the meaning of Town Law §130(27), and thus that statute does not authorize Smithtown to regulate the discharge of long bows and (2) whether a local ordinance prohibiting the discharge of a long bow within 500 feet of any dwellings is preempted by state law that comprehensively regulates hunting and expressly authorizes licensed hunting by long bow beyond the shorter discharge setback distance of 150 feet.

In 2014, the Legislature reduced the setback restriction for long bows to 150 feet.  See, L. 2014, ch. 55, pt. EE, § 8. The purpose of this change was to expand hunting opportunities in the State. The Memorandum in Support of the bill explained that the reduced setback for long bows “would maintain a safe distance for engaging in the sport while making available for hunting more lands in suburban areas, which would increase hunting opportunities, and help manage locally over abundant deer populations.”

During oral argument, Jennifer Juengst for Smithtown attempted to persuade the Court that the Town is within its rights under its home rule authority to enact ordinances that are more restrictive than the State’s. Arguing for HFD, Christian Killoran contended that the two laws clearly conflicted and called for the Court to limit the boundaries of municipal home rule, because the State had already taken into account public safety concerns when setting the 150-foot restriction and clearly “occupies the field” of hunting.

Under the doctrine of conflict preemption, where the State has shown a clear intent to “occupy the field,” a local law or regulation seeking to regulate the same subject matter is preempted and must yield to the State law if it either: (1) prohibits conduct which the State permits or (2) imposes restrictions beyond those imposed by the State law. See, Vatore v Commissioner of Consumer Affairs of the City of NY, 83 NY2d 645 [1994].

During oral argument, the panel of judges appeared split, with some judges arguing that because the State law merely sets forth the 150-foot safety restriction as a minimum, Smithtown could simply increase that setback under its police power and home rule authority.  While other judges appeared to be more convinced that there was a clear conflict between the State law and Town ordinance, with Judge Wilson stating to the Town, “you can’t call a banana a firearm can you.”

At the end of argument, Judge Garcia asked a pointed question of the Town about how much deference should the Court give to the State, which stated in its amicus brief that the ECL expressly authorized hunting in the State by long bow beyond the shorter setback distance of 150 feet, and Smithtown’s ordinance – which effectively bans hunting in nearly all of Smithtown – thus conflicts with, and is preempted by State law.

The tension between the Town’s home rule authority regarding greater setback distances versus the State’s need for safe and more effective distances for bow hunting as a tool to manage its exploding deer population appears to be on a knife’s edge.  Whether the ECL’s preemption is “to be or not to be” remains the question. See generally, Shakespeare, Hamlet, Act III, Scene I.